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Tuesday, May 20, 2014

Two procedural cases of note

Two procedural cases having nothing to do with one another, other than being interesting (to me).

1) Monday's SCOTUS Orders List included Thomas v. Nugent, in which the Court GVR'd to the Fifth Circuit for further consideration in light of last week's per curiam reversal without full briefing (also of the Fifth Circuit) in Tolan v. Cotton (which I wrote about here and here). I will simply quote what an alert reader wrote in an email: "So if the holding of Tolan is 'remember the basic concept of summary judgment, dummy,' then Thomas v Nugent seems to stand for the proposition 'you probably did it again, dummy, but your work was so sloppy that we're not even going to check it until you rewrite it.'" That about covers it.

2) Scott Dodson (Hastings) points me to this Ninth Circuit decision, written by Fed Courts guru Judge William Fletcher. A lot of Civ Pro/Fed Courts/Civil Rights stuff in here. Of particular note is the discussion at pp. 25-27. Part of the case involved the failure by the county to take sufficient steps to immediately find the family of an unidentified man shot and killed by a police officer (thus denying the family the opportunity to bury him in accordance with their Muslim faith). Among the many claims were I/I/E/D and negligence claims by the victim's siblings; the district court found they lacked standing because they had no legal interest in the disposition of the victim's remains and thus had not suffered an injury-in-fact. The court of appeals rejected that conclusion. The plaintiffs suffered emotional harm allegedly caused by the county's actions, which was sufficient to establish standing. Instead, the siblings' claims failed on the merits, because the county owed no duty to the siblings (defeating the negligence claims) and the county did not intend to cause the siblings emotional distress (defeating the I/I/E/D claims). But the absence of a valid claim of right reflects a failure of the claims on the merits, not an absence of standing/jurisdiction.

This standing analysis--resting on the distinction between injury-in-fact and right (in the Hohfeldian sense)--provides a different explanation for Richard's post on standing in Town of Greece (I tried to put this as a comment to that post, but Typepad is having some problems). There is a difference between whether a plaintiff has suffered an injury and whether his rights have been violated; the former goes to standing while the latter goes to the merits. In other words, a person can be injured, and thus have standing, even if the conduct at issue did not violate their rights, thus losing on the merits.

Here, for example, the siblings' emotional distress constitutes an injury-in-fact for standing, even if their rights were not actually violated (because there was no duty and no intent). In Town of Greece, the plaintiffs suffered an injury in that they were offended or felt excluded, even if their rights were not violated because only actual coercion runs afoul of the First Amendment; again, the plaintiffs have standing, but the claim fails on the merits. Or take one more example: The victim here suffered an injury-in-fact in being shot, providing standing (for his survivors), even if turns out the use of force was reasonable and thus the claim fails on the merits.

Now perhaps this distinction between injury and right is artificial or impossible to implement. But it may be the only way that standing does not swallow merits.